Separation is tough at the best of times, but can be even more emotional and messy when another party gets involved. When clients speak with us, we often find that the burning question on their mind is:
My partner cheated on me, can I take them to the cleaners?
I have left my partner for another person. Will it come back to bite me?
The short answer from a legal perspective is “no, unless…”
Prior to the Family Law Act 1975, if one party to a marriage was unfaithful, evidence of their breach of the marriage contract could be used against them in court proceedings.
The Family Law Act 1975 brought about a ‘no fault’ system in Australia. This means that the court is not concerned with infidelity or whether this was the cause of the breakdown of the relationship. However, there are some situations where infidelity could become relevant in a property settlement matter.
Situations where infidelity can influence a property settlement matter:
The unfaithful party spent a significant amount of money on the third party in the course of the affair.
One of the steps in determining a property settlement is to look at the contributions that each party has made to the property pool. Contributions are both financial and non-financial.
In some circumstances it may be argued that one party has made a negative financial contribution to the property pool. This is called ‘wastage’. For example, one party may have had a gambling addiction and spent a great deal of money on gambling, thus wasting the value of the overall asset pool.
If an unfaithful party has spent money on the third party in the course of the affair (for example expensive gifts, airfares, accommodation etc), this could also be considered wastage in relation to the relationship asset pool. This will depend largely on how much money was spent on the third party, and whether there is evidence to prove how much was spent if the matter should proceed to court.
The unfaithful party has begun living with a third party.
Another step in determining a property settlement is to consider the parties’ future needs, i.e. whether there is a relevant factor that entitles one party to an adjustment of the asset pool in their favour due to having greater needs for the future. One example of this is that one party is significantly older than the other and therefore has less time to work and accumulate assets and superannuation before retirement.
It is quite common that a party will enter a new relationship before they have dealt with the property settlement in a previous relationship. When one party has started living with a new partner, it is important to consider how their financial position may have changed as a result. For example, the new partner may own their own home mortgage-free, and therefore that party may not need to pay rent or contribute towards home loan repayments for the foreseeable future. If the other party has been left to pay the home loan, they could argue that they should receive a greater share of the property pool.
The affair resulted in a physical injury (such as a sexually transmitted disease) or psychological harm to the partner.
This relates again to the future needs aspect of the property settlement. In some unfortunate cases, one party’s affair may result in the other party being injured by becoming infected with a sexually transmitted infection or illness. Depending on what kind of illness has been passed on, this could affect the injured party’s long-term physical and / or mental health and income earning potential.
It is important that the injured party can show that their capacity to work and earn an income has been affected. This will require evidence such as a report from a doctor or psychologist.
The impact of cheating in family law proceedings
Whatever the answer is from a legal perspective, in reality we find more often than not that the situation is inflamed when a third party becomes involved. Feelings are often hurt when one party moves on from the relationship, even when no cheating has actually occurred.
A party that feels hurt will often act in a way that makes the process harder for the other party, even when they know it is not relevant to their property settlement. This can happen in both property and children’s matters, and this typically increases the duration and the costs for both parties.
On the other hand, guilt can sometimes impact property settlement negotiations. Even when from a legal perspective it should not affect the settlement, we have seen clients who were unfaithful give in to demands of the other party and settle for a less favorable outcome because of the guilt that they feel as a result of an affair.
How to handle property settlement when cheating is involved?
There are only limited circumstances where infidelity will be relevant to a property settlement, but we understand that emotions can play a big part in steering parties toward a particular outcome. The best thing for the parties to do in this situation is to keep emotions separate, sort out the property settlement as quickly as possible and move on with their lives.
If the relationship between parties has become volatile, it can be helpful to engage a lawyer to represent you. Your lawyer can create a degree of separation between you and your former partner, and provide proper advice about your matter.
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